Bombay High Court
Janiram Devidas Rahangadale And ... vs The State Of Maharashtra, Thr. ... on 24 October, 2016
Bench: S.B. Shukre
1 Revn 170.16(J)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL REVISION APPLICATION NO.170/2016
1. Janiram Devidas Rahangadale, ..APPLICANTS
Aged about 54 years, Occu : Agriculturist,
R/o Satawada, Tahsil Sakoli,
District Bhandara,
2. Shekram Sadashiv Katre,
Aged about 58 years, Occu.: Agriculturist,
R/o Khamba Tahsil Sakoli,
District Sakoli.
--Versus ---
The State of Maharashtra, through ... NON APPLICANT
Range Forest Officer, Sakoli, Tah.Sakoli,
District Bhandara.
------------------------------------------------------------------------------------------------------
Shri A.M.Quazi, Advocate, for the applicants.
Shri C.A.Lokhande, A.P.P. For State/REspondent-sole.
CORAM : S.B.SHUKRE, J.
DATED : 24.10.2016
ORAL JUDGMENT
By this Revision Application, the applicants have challenged
legality and correctness of the judgment and order dated 29.09.2016 passed
by Additional Sessions Judge, Bhandara, thereby confirming the judgment
and order dated 17.07.2012 rendered by Judicial Magistrate, First Class,
Sakoli, convicting the applicants of the offence punishable under Section 42
2 Revn 170.16(J)
of the Indian Forest Act and sentencing them to suffer rigorous
imprisonment for six months and to pay fine of Rs.500/- each, in default to
suffer rigorous imprisonment for seven days.
2. The applicants were prosecuted for having cut down two teak
trees from reserved forest of Jambhali out of beet No.17 and then reducing
those teak trees into 23 strips without any license or permit. The offence of
cutting of teak trees was alleged to have taken place sometime prior to
27.08.2007 and offence of reducing of teak trees into 23 strips and
transported by Maruti Van took place on 27.08.2007. Accordingly, they
were charged with offence punishable under Sections 26(1)(e)(f) and 42 of
the Indian Forest Act, 1927. On merits of the case, the learned J.M.F.C.
acquitted the applicants of the offence punishable under Section 26 of the
Indian Forest Act as the same was not proved, but the offence punishable
under Section 42 of the Indian Forest Act was found to be reasonably
proved against both the applicants. Therefore, by judgment and order
dated 17.07.2012 the learned J.M.F.C. acquitted the applicants of the
offence punishable under Section 26 of the Indian Forest Act and convicted
them of the offence punishable under Section 42 of the Indian Forest Act by
imposing sentence as stated earlier.
3. The matter was carried in appeal by the applicants before the
learned Additional Sessions Judge, Bhandara, which was registered as
Criminal Appeal No. 35/2012. The learned Additional Sessions Judge, after
hearing both the parties and perusing the record, found that there was no
3 Revn 170.16(J)
scope for interference with the judgment and order of the learned J.M.F.C.
and therefore, dismissed the appeal by judgment and order dated
29.09.2016. It is the same judgment and order which are under challenge
before this Court.
4. Shri A.M.Quazi, learned counsel for the revision applicants
submits that there is fundamental flaw in prosecuting the applicants which
has gone totally unnoticed by the Courts below. He submits that Forest
Round Officer, P.W.4 Salimuddin Khan has stated before the Court that he
had stopped the Maruti Van in which the said 23 teak strips were
transported by these applicants and having found the teak strips in the
Maruti Van, he had seized them. The seized property was never produced
before the Court and therefore, it is not known as to whether the property
that was seized, was really a teak wood or not. He also submits that the
provision of Section 52 of the Indian Forest Act, which requires forest
officer to report seizure to the Magistrate having jurisdiction over the
matter, has not followed in this case. Therefore, the applicants deserve to
be acquitted of the offence punishable under Section 42 of the Indian forest
Act, so submitted by the learned counsel for the applicants.
5. Shri C.A.Lokhande, learned Additional Public Prosecutor for the
State/respondent sole, submits that non production of the teak wood before
the Court is a matter of record and therefore, it may be considered in
accordance with law. He also submits that perusal of the entire evidence of
the prosecution would show that by non production of the seized property
4 Revn 170.16(J)
before the Court, no prejudice has been caused to the applicants.
Therefore, according to him, there is no scope for interference with the
impugned judgments and orders.
6. On perusal of the record of the case, it could be seen that the
seized property i.e. 23 strips of teak, was not produced before the Court. It
is further seen that no Panch witnesses were examined, who had witnessed
the seizure of the teak strips. The document, vide Exh. 55, which is
Supratnama, shows that these teak strips were released into the custody of
P.W.5-Milind Ghormare on Supratnama. In Supratnama, PW 5 Milind has
given an undertaking that as and when required, he shall produce these
teak strips before the Forest Officer, who released them into his custody.
So, the teak strips were available for production, but they were never
produced before the Court. If that is so, the question would arise as to
whether teak strips seized in this case were really made up of the teak wood
or not. Had these strips of wood been produced before the Court, an
opportunity would have been available to the applicants to have careful
look at the seized property and put up an appropriate confrontation to the
Seizure Officer to prove their defence. But, because of non production
before the Court, the applicants have been deprived of this opportunity and
therefore, they could not prove their defense that the seized property was
not made up of teak wood. Thus, serious prejudice to prove the defence of
the applicants has been caused because of non production of the seized
property before the Court and it would certainly go to the root of the whole
prosecution case, the benefit of which deserves to be given to the
5 Revn 170.16(J)
applicants.
7. The record of the case also shows that even the procedure
prescribed under Section 52 of the Indian Forest Act has not been followed
in the instant case. It requires that soon after the seizure, report of the
seizure must be given to the Magistrate having jurisdiction to try the
offence. But, that has not been complied with. Non compliance with this
provision of law would enable me to draw an adverse inference against the
prosecution. It would be that the report was not made to the Magistrate
only because the Forest Officer seizing property had some doubt about the
property having been made up of teak wood. The benefit of adverse
inference would also go to the applicants.
8. All these aspects of this case, as rightly submitted by the learned
counsel for the applicants, have not been considered by the Courts below
which has resulted in causing miscarriage of justice to the applicants who
have been deprived of their right to defend themselves. From the
prosecution view as well, there is a doubt about the property seized in this
case whether it was teak wood or not as there is no other reliable evidence
showing it to be so. The revision application, therefore, deserves to be
allowed by quashing the impugned judgments and orders.
9. The revision application is allowed. The impugned judgments
and orders are hereby quashed and set aside. The applicants are acquitted
of the offence punishable under Section 42 of the Indian Forest Act. The
6 Revn 170.16(J)
applicants be released forthwith, if not required in any other crime. The
fine amount, if paid, be refunded to them.
JUDGE
Andurkar
7 Revn 170.16(J)
CERTIFICATE
I certify that this Judgment/Order uploaded is a true and correct
copy of original signed Judgment/Order.
Uploaded by: J.S.Andurkar. Uploaded On:26.10.2016
